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Light at the End of the Tunnel

There’s light at the end of the long, gloomy tunnel of the DT Administration. Unfortunately, it’s an oncoming train.

While we’re fussing over distractions like the Russia investigation or Stormy Daniels, the lives and careers of the nine Supreme Court Justices are inevitably approaching their ends. The replacement of Scalia with Gorsuch left the court in a precarious balance, with the swing vote often being cast by Anthony Kennedy. But this balance would skew drastically to the right if any of the four liberal justices, or Kennedy himself, should die or retire while Republicans control both the White House and the Senate. There is no credible scenario under which the Republicans could lose the White House before January, 2021, and little chance that even a massive Blue Wave could give Democrats control of the Senate before 2020. Even if DT dies or resigns or is otherwise removed this window of vulnerability will remain open under Pence or whoever.

It’s reasonable to suppose that no member of the liberal group will willingly retire in a period of Republican control. Anthony Kennedy, however, might be willing to turn his seat over to a right-wing successor, and he is rumored to be considering retirement (although he did hire clerks for next year). And nobody can foresee the date of their death. What then is the demographic risk that one of the liberals, or Kennedy, will die in the next two years?

Justice

Age

Probability

of Death (2 years)

Ruth Bader Ginsburg

85

16%

Stephen Breyer

79

12%

Sonia Sotomayor

63

2%

Elena Kagan

57

1%

Anthony Kennedy

81

14.5%

One or More of Them

39%

Without even taking into account individual health histories, or the possibility of Kennedy’s voluntary retirement, there’s a substantial chance that the Republicans will be able to replace a liberal justice with a right-winger by 2020. If so, many 5-4 decisions in recent decades could be reversed, including same-sex marriage, although it’s also possible that Justice Roberts could refuse to overturn recent decisions based on the principle that cases should be decided on the basis of previously decided precedents (stare decisis).